188 Ind. 514 | Ind. | 1919
Lead Opinion
— Appellee, as administrator of the estate of Charles Elliott, recovered a judgment in the trial court for damages resulting from the death of said Elliott, which he alleges was caused by appellant in the operation of one of its cars.
The record shows that Elliott was a passenger on one of appellant’s street cars' in the city of Muncie at the time he received the injury which caused his death. The car on which he was a passenger was operated on a track which extended across, a bridge of White river, and which was constructed so close to the girders as to leave only a narrow space between the superstructure of the bridge and the side of the car passing over the bridge on said track. The car on which he was riding was an' open car with cross seats extending entirely across the car and with a running board along the right side. When he boarded the car he took a standing position on the rear platform, and as the car approached the bridge he decided to change his position and to occupy one of the cross seats. In attempting to do so, he stepped from the rear platform to the running board when the car was close to-the bridge and, while on the running board attempting to enter a seat, his body came in contact with the superstructure of the bridge, causing him to be knocked from the running board and killed.
The complaint alleges that the space between the superstructure of the bridge and the side of a passing car was not sufficiently wide to permit the decedent and other passengers on the car to pass between the same, which fact was well known to the defendant. It is not alleged that such condition was due to any negligence or want of proper care on the part of appellant in the
By the answer of general denial, an issue of fact was formed as to the negligence of appellant, which v/as submitted to the jury to be decided. Appellee asserted that, in the discharge of the duty to exercise due care for the safety of appellee’s decedent, it was necessary to warn him of the danger which threatened him and which he was approaching, and that appellant failed to take such precaution. This was denied by appellant. This presented an issue of fact which the jury was required to decide from a consideration of all the surrounding conditions and the attendant circumstances as disclosed by the evidence. The evidence shows without dispute that no notice was given to appellee’s decedent of the approach of the car to the place of danger described. This narrows the issue of fact thus presented to the single question: Under the existing conditions and the attending circumstances as shown by the evidence, was it incumbent on appellant to take the precaution of warning appellee’s decedent of the car’s approach to the bridge in order to measure up to the standard of care imposed on it by law? If the jury determined that the standard of care imposed required the exercise of such precaution, under the conditions and
As bearing on this question there was evidence to show that the track was so close to the side of the bridge as to expose persons on the running boards or passing cars to the danger of coming in contact with the superstructure of the bridge, and that such danger was known to appellant and its employes; and that such danger had been recognized by such employes in stopping cars before entering the bridge and requiring passengers standing on the running board to get inside the car; and in some instances, when there was not room inside the car, requiring passengers standing on the running board to alight and walk across the bridge after which they were permitted again to board the car. There was also evidence from which the jury could have properly inferred that appellee’s decedent knew of the dangerous condition, and knew that the car was close to the bridge when he stepped from the platform to the running board. On this point there' is evidence that Elliott had lived on West Jackson street where he kept a grocery for about four months immediately preceding his death, and that it was necessary for him to cross the bridge, where he was afterward killed, every time that he went into the business section of the city; that he had crossed this bridge almost daily and sometimes twice a day during the time he had lived there, frequently going on the street ear, but generally using his delivery wagon. The evidence further discloses that the car on which Elliott was riding was stopped just prior to the accident with its front end from six to twelve feet west of the entrance to the bridge, for the purpose of receiving passengers. It is undisputed that when the car started from this point it moved up an incline to the entrance of the bridge at a slow rate of speed; that Elliott was on the rear platform of the car facing the bridge; that no one was on
As bearing on the issue of negligence, the court gave the following instruction: “If you find from the evidence in this case that on and about the 23rd day of May, 1914, the defendant was a common carrier of passengers, then I instruct you that it/was held to the highest degree of care and diligence for the safety of passengers consistent with the mode of conveyance employed, and that the omission of the defendant to exer
In view of the importance of the question, the court has felt justified in discussing it at some length and giving its reasons in some detail. Not because the question is new, but because our opinions seem to be somewhat confused and conflicting. -
In view of the conclusion reached, other questions which may not arise on a second trial are not considered.
The judgment is reversed, with instructions to sustain appellant’s motion for a new trial.
Rehearing
On Petition fob Rehearing.
— In the adoption of the original opinion the court acted advisedly with full knowledge of the great current of authority with which it is apparently in conflict. On petition for rehearing, able briefs have been filed in which authorities from this state and from other states are arrayed and discussed. It must be conceded that the cases generally state the rule to be that carriers of passengers are required to use the highest degree of care practicable; but we cannot think that .the courts by the use of such language intended to state that the law exacts a different standard of duty in cases where the relation of carrier and passenger exists from that which- it exacts in cases where other relations are shown which -give rise to a duty to use care. If it was the purpose to state a distinct standard of duty exacted by law, it is certain that no court has ever undertaken
The duty to use ordinary care requires the party on whom the duty rests to consider the character of the act, undertaking, or business in which he is engaged and the probable dangers incident thereto, as well as all other existing conditions and circumstances, and in determining the means to be used, the precautions to be adopted and the care to be generally exercised in view of the probable dangers, and the- surrounding circumstances, he is required to exercise such intelligence, foresight, judgment and prudence as a'person possessed of ordinary intellectual endowments would exercise in doing the same thing under like conditions and circumstances. This being true, any standard of duty which would exact more than ordinary care would require
■ All persons and corporations engaged as common carriers of passengers are not bound as a matter of law to observe the same precautions and to exercise the same caro, and vigilance to secure the safety of passengers, for the reason that the means of transportation adopted by one may be stage coaches drawn by horses at a moderate speed over good roads under circumstances which involve little danger to passengers; while the other may carry passengers in coaches drawn by locomotives over railroads at high speed under conditions involving much greater danger to the lives and limbs of the passengers. It may well be that tests which would be regarded as a matter of fact to be sufficient and adequate, when ap
The court as a whole has carefully considered the briefs filed on petition for rehearing; and after such consideration and after consultation every'member of the court is satisfied that the rule announced in the original opinion is correct in principle. The court has not reached its conclusion by arrogating to itself any superior wisdom, or by assuming to possess any superior powers of logic or reason; but, from a careful and conscientious consideration of the reasons which we have endeavored to state, the conclusion reached seemed to be inevitable, and it was accordingly adopted.
Rehearing denied.
Note. — Reported in 121 N. E. 655, 124 N. E. 787.